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Overview of Immigration
US admits ¾ million immigrants a year, more than any other Western nation
Immigration law is divided into 3 categories
– Theory – statute/constitution – the way in which it is practiced and the background of what it is
– Practice – how to get someone a green card or how to represent a client, etc.
– Emotional – coupled with family and custody law, it’s the most human area of the law
Legislation – product of its time and as such it often reflects the fears of the time
– The Patriot Act, Homeland Security, Chinese Exclusion Act, etc.
– Is economically driven; when the economy is good the doors are more open, when its bad theirs more anti-immigration animosity
– Is torn between two different ideologies
o Tolerance, freedom, melting-pot ideology
o Restrictionism, nativism, fear, xenophobia, assimilationism, political ideology, national security, racism (prefers the admittance of Europeans) and disease
The Right to Control Immigration (not directly granted by the Constitution) – nebulous
– the Supreme Court has argued that it is an inherit right of any sovereign nation
o The power has been granted to Congress and the Executive branch through…
§ Art. 1(8)(3) of the commerce clause – Edwards v. CA – migrants as commerce
§ Art. 1(8)(4) – Power of naturalization – explicitly given the power to determine citizenship standards
§ Art. 1(8)(11) – can declare war – the power therefore to control one’s borders (refugees/internment/spies)
§ Art. 1(9)(1) – migration & importation clause – state’s were given the power to decide admittance until 1808 (slavery)
§ Inherit foreign affairs powers – immigration is an aspect of this – the right of any sovereign nation
History of Immigration Policy
– Early US history of regulating
o 1st immigration policy in 1790
§ 2yr previous residence and must forfeit other national allegiances and citizenship
o Late 1700s – Alien Enemies Act and Alien Friends Act (allowed the President to deport anyone he considered dangerous)
o 1819 – began recording who was immigrating
§ 1890 – increase in the number of Eastern Europeans immigrating to the US – (began to regulate immigration by disallowing the immigration of criminals and issuing literacy tests)
o 1868 – Burlingame Treaty – a treaty between the US and China that permitted for the free migration and emigration between the 2 countries, also gave the Chinese living in the US the same rights as US residents
o 1882 – Chinese Exclusion Act
§ Chinese began migrating in 1849, often worked for the railroad
§ 1st prohibited any more from entering, then began to ban those who left from returning
· Chai Chan Ping (SC – Congress has the right to regulate immigration) – Power to exclude
o Argued that the act violated the Burlingame Treaty (newest leg. rules, treaty needs leg. to be enforceable)
o An individual can’t complain about US policy, their nations must
· Fong Yue Ting v. US (couldn’t provide a witness that he was here before the passing of the act – deported) – power to deport
o Deportation isn’t a criminal proceeding so there’s no habeas corpus or due process
o Right to deport is an inherit right of any sovereign nation
· Wong Wing v. US (overruled a section of the Act that allowed for punishment w/out a trial)
o Deportation isn’t a punishment – can retain for that w/out a trial
o If there’s to be a punishment though then the individual is entitled to a trial (hard labor)
o WW1 – Americanization Efforts
Definitions
Alien – any person not a citizen or national of the US
Nonimmigrant Alien – ambassadors, di
by past persecution and there hasn’t been a significant change in the government or circumstances
– Social Group; shared an immutable common characteristic (kinship, pass experience, color)
Crime of Moral turpitude – aggravated felony (doesn’t have to be a felony under state law, CA pot is legal but not fed.), use of a controlled substance, domestic violence, stalking, child abuse, violating a restraining order
IMMIGRATION PROCESS
Upon attempting to enter there are 2 forms of inspection
– Primary; show papers and move on
– Secondary; personal interview and search
The Steps for an immigrant without family or employment opportunities
– go the closest consulate and apply for a visa (need to have a passport from your country, this offers you permission to leave)
o there’s no appeal proceedings for a consulate visa denial
Entering the US
LPR/greencard status – Sponsored by a qualified relative (LPR or citizen), both the sponsor and the applicant file applications, there are not grounds of inadmissibility
– Types of LPRs
o Immediate family members- children can age out
o Marriage based greencard – need to present them with a marriage certificate, can prove that the marriage is legal and recognized in the US, the marriage is bona fide, the birth certificates of both spouses and the sponsor is over 21 years of age,
Resulting in a 2yr conditional status and cohabitating at that time (valid for work and movement
